Troy v Wrigglesworth [1919] HCA 31

Troy v Wrigglesworth [1919] HCA 31 - HCA 1919 case summary — Zoe

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and subject to certain " conditions and restrictions," which are forth. One of these conditions or restrictions is as follows ( 39 (z) (d)): "The Federal jurisdiction of a Court of summary jurisdiction of a State shall not be judicially exercised except by Stipendiary or Police or Special Magistrate, or some Magistrate of the State who is specially authorized by the Governor-General to exercise such jurisdiction." It is not contended that this cla with its conditions or restrictions is invalid; it is not cont that the Parliament had no power to affix such conditions o restrictions when it invested the Court with Federal jurisdiction (see sec. 79 of the Constitution). But the point is taken that ther is no appeal to this Court, inasmuch as the Court of Petty Sessi was not "exercising" any Federal jurisdiction; that accord to the appellant's contention it had no Federal jurisdiction unk a Police Magistrate constituted the Court; and that under Constitution (sec. 73) and the Appeal Rules, Sec. IV., rule 1, only appeal allowed to this Court is from Courts " exercis Federal jurisdiction." Under sec. 73 of the Constitution, the Hig Court has jurisdiction to hear appeals from all judgments, &e. " of any Court exercising Federal jurisdiction " ; and it is said that the Court of Petty Sessions was not " exercising Federal jurisdiction which it had not got, but was purporting to exercise or usurpi such jurisdiction. It is suggested that the remedy, if any, is prohibition, or by order nisi of the Supreme Court of the State. The first ground of the appeal is "that the said Court of Petty Sessions as constituted had no jurisdiction to entertain the said information." On the facts which I have stated, the said Court should not have heard the information unless the Court consisted 0 a Police Magistrate. The Victorian Justices Act 1915 provides (sec. 63) that every Court of Petty Sessions shall consist either of two or more Justices of the Peace or of a Police Magistrate. The question is : Can this Court allow the appeal, can we make the order nisi absolute, where it appears that the Court below ought not to have convicted unless it consisted of a Police Magistrate? Can we allow the appeal when the Court below had no Federal jurisdic-_ tion that it could exercise as constituted? Is there a remedy by way of appeal to this Court? The objection is microscopic, and it

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ection, absurd as it must appear to a mind unused to our methods of verbal discrimination. But, on examining sec. 39 of the Judiciary ct, I find that the Court of Petty Sessions had full Federal jurisdic- tion over the case, and that it has merely failed to comply with a certain condition annexed to the exercise of the jurisdiction. Sec. 39 does not, in its final clause, " except" cases arising under the Constitution from the jurisdiction of the Court below. It is the Court that is " invested " with the jurisdiction, not a Police Magis- trate; but a " condition " is imposed that when the Court exercises the jurisdiction it must exercise it with certain precautions; and those precautions have not been taken. There has always been investiture of the Court with the garment, but the movement of the Court has not been carried out in the prescribed manner. This is not a case of usurpation of Federal jurisdiction, but of abuse in the ee thereof. The difference between " exceptions " and " con- is well recognized in conveyancing. An " exception" must be of part of the thing granted; as, for instance, of a close of land vithin the boundaries (Davidson on Conveyancing, 4th ed., vol. 1., p. 96). There are certain "exceptions " from the grant of jurisdiction in sec. 39 (2) - " except as provided in the last preceding section " but the "condition or restriction" as to the exercise of the juris-

diction by a particular Magistrate is not an "exception" from the jurisdiction of the Court of Petty Sessions. The position seems to me to be the same substantially as if the Act prescribed that before any exercise of Federal jurisdiction the Court should cause notice to be given to the Commonwealth authorities, and that no such notice had been given. The jurisdiction would be in the Court, but 'it would be wrongly exercised. Under these circumstances I am of opinion that the Court below has exercised Federal jurisdiction, but in the wrong way ; and that the appeal should be allowed, and the order nisi made absolute.

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Gavan Durry J. This case was argued before us principal the first ground taken in the order nisi to review, which as am stands thus: "(1) That the said Court of Petty Sessions constituted had no jurisdiction to entertain the said information,' On the hearing before us this ground was treated as an allegatii that there was no jurisdiction to convict. The reason alleged ij support of this contention was that the Court of Petty Sessions had no right to judicially exercise any Federal jurisdiction under provisions of the Judiciary Act 1903-1915, sec. 39 (2) (d). ground will, in my opinion, entitle the appellant to have the con' tion quashed if his appeal lies, but if the Court of Petty Session had no jurisdiction to convict, it seems to me that we have no jurisdiction to entertain the appeal. Sec. 73 of the Constitution gives an appeal to this Court from all judgments, decrees, ord ers and sentences of any Court exercising Federal jurisdiction. If, was suggested during the argument, the phrase " exercising Feder jurisdiction " in sec. 73 is to be read as including the usurpation of Federal jurisdiction, we have the curious anomaly of an appeal ly on the ground that the Court of Petty Sessions was exe Federal jurisdiction, and being allowed on the ground that it not exercising Federal jurisdiction. But I think it is beyond doubt that sec. 73 gives an appeal only in cases where the Court from which the appeal comes is in fact exercising a Federal jurisdiction wi which it has been invested by Parliament, and not in cases where itis usurping jurisdiction. The section confers on this Court a rij to entertain an appeal where the Court from which the app comes, in the exercise of its jurisdiction, has made a wrong or not a power to prevent the usurpation of authority such as is exerci by English and Australian Courts in granting prerogative writs of prohibition. If this be so, we must next consider whether, in con- victing the appellant, the Court of Petty Sessions was in fact e cising a Federal jurisdiction with which it had been invested b Parliament. Sec. 77 of the Constitution authorizes Parliame

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